### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-40680 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. GABRIEL RIOS, Defendant-Appellant

Appeals from the United States District Court for the Southern District of Texas USDC No. 2:10-CR-1233-1

Before WIENER, GARZA, and CLEMENT, Circuit Judges. PER CURIAM: * Defendant-Appellant Gabriel Rios appeals his conviction and resulting 120-month within-guidelines sentence fo r e i gh t counts of possession of child
p o r n o graphy. Rios argues that the evidence was insufficient to support hi s conviction because the government failed to es t ab lish that he knowingly possessed child pornography and that he intended to view child pornography. He challenges the substantive reasonableness of his sentence, arguing that it is greater than necessary t o a c complish the sentencing objectives of 18 U.S.C. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D May17 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-40680 Document: 00511859634 Page: 1 Date Filed: 05/17/2012No. 11-40680

§ 3553(a). Rios further contends that the child pornography Guidelines are not entitled to deference because they are not empirically based, but Rios correctly notes that this argument is f o r e c losed and raises it to preserve for further possible review. See United States v. Miller , 6 6 5 F

. 3 d 1 1 4 , 119-26 (5th Cir. 2011). Finally, Rios argues that th e c o n dition of release compelling him to submit to psycho-physiological testing, including application of the penile plethysmograph, is overly broad and constitutes an unnecessary deprivation of his liberty interests. We will uphold the jury’s verdict if a rational trier of fact could conclude that “the elements of the offense were established beyo n d a r e asonable doubt, viewing the evidence in the light most favorable to the verdict and drawing all reasonable inferences from the evidence to support the verdict.” United States

v. Percel , 5 5 3 F .3d 903, 910 (5th Cir. 2008) (internal quotation marks and citation omitted). Direct and circumstantial evidence are weighed equally, and it is not necessary that the evidence exclude every reasonable hypothesis of innocence. United States v. Mendoza , 226 F.3d 340, 343 (5th Cir. 2000). We do “not weigh evidence or assess the credibility of witnesses, and the jury is free to choo s e among reasonable constructions of the evidence.” United States v. Ramos-Cardenas , 524 F.3d 600, 605 (5th Cir. 200 8). Under 18 U.S.C. § 2252A(a)(5)(B), the government was required to prove that Rios knowingly possessed or accessed, with the intent to view, any material that contains an image of child pornography that w a s mailed, shipped, or transported in or affecting i n t e rstate or foreign commerce by any means, including a computer. In the instant case, Rios incriminated himself and was identified as the most frequent user of the computer. The number of videos f o u n d o n the computer, the explicit terms in the titles of the videos re f e r e n c i ng child pornography, and th e fact that many of the videos were previewed during the downloading process showed an intent to possess and access child pornography.
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Viewing the evidence in a light most favorable to the verdict, a reasonable trier of fact could have found b e y o n d a reasonable doubt that Rios knowingly possessed child pornography. The substantive r easonableness of a sentence is reviewed for abuse of discretion. Gall v. United States , 552 U.S. 38, 51 (2007). As Rios’s sentence was within the guidelines range, his sentence is presumptively reasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). The presumption of

reas o n ableness “is rebutted only upon a showing that the sentence does not account for a factor that should receive s i gn if i c ant weight, it gives significant weight to an irrelevant or improper factor, or it represen ts a clear error of judgment in balancing sentencing factors.” Id. I n this instant case, the court reflected on the factors of § 3553(a). Th e

c o u rt properly considered deterrence and the need to protect the publ i c f r o m future crimes. Rios offers nothing to show that the cou rt ’ s presumptively reasonable choice of a within - guidelines sentence was an abuse of discretion. See United States v. Newson , 515 F.3d 374, 379 (5th Cir. 200 8). Rios’s final argument that the special condition of release compelling him to submit to treatment that may include psycho-physiological t e s tin g constitutes

an unnecessary d eprivation of his liberty interests is not ripe for review. See United States v. Carmichael , 343 F.3d 756, 761-62 (5th Cir. 2 003). Accordingly, the judgment of the district court is AFFIRMED.

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